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<\/p>\n With the entry into force of the Act of 10 December 2020 on the Pharmacy Profession (i.e. Journal of Laws of 2022, item 1873) \u2013 hereinafter referred to as the \"Act on Pharmacies\", i.e. from 16 April 2021, new employment law for pharmacists has emerged, relating to their previously existing obligation of continuous professional development. This refers to the entitlement to paid training leave (Article 78(3) of the Act on Pharmacies). The introduction of hitherto unknown legal solutions is often associated with the emergence of practical problems. The wording of the provisions in which they are foreseen often raises doubts. Thus, there arises a need to interpret the new regulations. Until the jurisprudence of the competent bodies \u2013 e.g. common courts (in the described case, labour courts), the Supreme Court, and administrative bodies (in the described case, the National Labour Inspectorate) \u2013 is shaped, it is uncertain what interpretation they will adopt. The aim of this entry is to present one of the possible directions for interpreting Article 78(3) of the Act on Pharmacies, which, in the opinion of the authors, is the most accurate.<\/p>\n The provision establishing the pharmacist's right to paid training leave indirectly specifies exactly who holds the new competence. It refers to Article 36(1)(1) and (6) of the same Act. Therefore, it should be stated that the described solution applies to employees within the meaning of the Labour Code (hereinafter referred to as LC) and to persons in an official capacity regulated by the Act of 11 March 2022 on the Defence of the Homeland (consolidated text: Journal of Laws, item 2305) and the Act of 9 April 2010 on the Prison Service (consolidated text: Journal of Laws of 2023, item 1683). It is worth emphasising that the same person may practice as a pharmacist simultaneously in several places, in more than one legal form. Of course, one must remember the limitations of this freedom resulting from legal provisions, such as the prohibition of combining the position of pharmacy manager with the position of Responsible Person (manager of a pharmaceutical wholesale warehouse), or the impossibility of being the manager of more than one pharmacy at the same time \u2013 Article 88(1a)-(1b) of the Act of 6 September 2001 \u2013 Pharmaceutical Law (consolidated text: Journal of Laws of 2022, item 2301). For example, however, a pharmacist can be employed simultaneously in two pharmacies: in one \u2013 as an employee due to an employment contract, and in the second \u2013 based on a so-called civil law contract. This second contract can be titled in various ways: mandate contract, service contract, etc. (colloquially, and not entirely correctly, it is also referred to as a \"junk contract\" or \"junk employment\"). In such a case, the right to paid training leave is granted to the pharmacist exclusively within the framework of employment. It should be noted, however, that by exercising freedom of contract, the pharmacist may agree with the second employer that they will have a right to paid training leave similar to that regulated in Article 78(3) of the Pharmaceutical Law. For determining the existence of a statutory right to paid training leave for a pharmacist, Article 22 \u00a7 1 is of significant importance.1<\/sup> The Labour Code states that if employment is based on conditions characteristic of an employment relationship, it should be considered an employment relationship. In this context, it is irrelevant how the contract forming the basis of the cooperation was named by the parties (e.g., as a \"contract of mandate\"). Therefore, a pharmacist formally working under a civil law contract may also take advantage of paid training leave, provided that their task is actually to perform a specific type of work for and under the direction of the employer, at a time and place determined by the employer, and the employer hires them for remuneration (Art. 22 \u00a7 1 of the Labour Code). When considering the scope of pharmacists entitled to paid training leave, another issue should be addressed. The same pharmacist may be simultaneously in more than one employment relationship \u2013 for example, in two pharmacies, each on a half-time basis. The new provision of the Pharmaceutical Law does not resolve this issue directly, but the most appropriate conclusion appears to be that in the case of a pharmacist being employed concurrently under two or more employment relationships, the right to training leave accrues to them on the basis of each of these relationships independently of other employment relationships.<\/p>\n In art. 1031<\/sup> The Labour Code states that the improvement of professional qualifications involves an employee acquiring or supplementing their knowledge and skills. At first glance, it may seem that this provision could apply to the continuous professional development of a pharmacist. However, the remainder of the provision stipulates that the improvement of professional qualifications takes place either on the employer\u2019s initiative or on the employee\u2019s initiative \u2013 with the employer\u2019s consent. The continuing professional development of a pharmacist, as already mentioned, is, however, a legal obligation for anyone authorised to practise the profession. It can therefore be said that the very act of a pharmacist improving their qualifications, as referred to in Article 78 of the Act on the Pharmaceutical Profession, takes place at the initiative of the legislator. All that remains for the pharmacist is to choose the career development paths most suitable for them and to plan them in the way that is most beneficial to them. Another argument against simply classifying a pharmacist\u2019s continuous professional development as \u2018upskilling\u2019 as provided for in the Labour Code is the fact that the fulfilment of a pharmacist\u2019s legal obligation to undertake further training in the form of their choice should take place even even if the employer were opposed to it. The analysed Article 78(3) of the Pharmacists\u2019 Act merely requires agreement with the employer on the dates of the pharmacist\u2019s paid training leave. In other words, the employer may only be involved in determining the dates of the pharmacist\u2019s absence from work whilst retaining the right to remuneration. The list of permissible methods for a pharmacist to improve their professional qualifications is, however, laid down by law. This is set out in the Regulation of the Minister of Health of 28 December 2021 on educational credits obtained as part of continuing professional development and the template for a pharmacist\u2019s professional development record (Journal of Laws, item 2494). The above leads to the conclusion that a pharmacist\u2019s paid training leave, by virtue of its close link to the statutory obligation of continuing professional development, is not directly subject to the provisions of the Labour Code concerning training leave. The same applies to other issues relating to the undertaking of training and similar activities by a pharmacist employed under an employment contract. This does not, however, mean that \u2013 given the very limited scope of Article 78(3) of the Act on Pharmacists \u2013 one cannot seek similarities between the aforementioned types of training leave and rely on them when applying the law. Indeed, legal literature has expressed the view that the granting of the right to paid training leave to a pharmacist who is an employee stemmed from the legislator being inspired by the provisions of the Labour Code concerning an employee\u2019s \u2018general\u2019 training leave.<\/p>\n This provision sets out the duration of a pharmacist\u2019s paid training leave. It amounts to up to 6 working days per year. Article 78(3) of the Pharmacists\u2019 Act does not specify how the amount of paid training leave for a pharmacist should be calculated if the pharmacist is employed on a part-time basis under a given employment contract. On the one hand, it might seem that Article 154(2) of the Labour Code should apply in such a situation. The provision in question determines the amount of annual leave for an employee employed on a part-time basis. If this line of reasoning were adopted, a pharmacist working on a basis other than \u2018full-time\u2019 could expect to be entitled to as many days of paid training leave as would be proportionate to their working hours. For example, if the calculation were made in this way, a pharmacist employed \u2018part-time\u2019 would be entitled to only 3 days\u2019 paid training leave per year. On the other hand, the provision of the Act governing the profession of pharmacist does, after all, refer to \u2018working days\u2019. This term does not appear in Article 154 of the Labour Code nor in any other provisions of that Code governing annual leave. These provisions refer only to \u2018days\u2019 of leave. The term \u2018working day\u2019 \u2013 as in Article 78(3) of the Act on the Profession of Pharmacist \u2013 is used by the legislator, for example, in Article 34(1) and Article 37(2) of the Labour Code. This difference appears to be of significant importance. A working day is a day on which an employee performs their work. If one accepts this reasoning, the length of working time falling on a given calendar day is irrelevant for the purposes of referring to it as a working day. It is worth noting here that a pharmacist\u2019s paid training leave is, in terms of its function, more similar to paid leave from work duties for the purpose of seeking employment (as regulated in Article 37(2) of the Labour Code) than to annual leave. The former serves to ensure that an employee can continue their professional career without interruption following the termination of their current employment. The latter is intended to provide the employee with adequate rest and the opportunity to spend time on their private life. The second interpretation appears to be the more correct one. Apart from the considerations mentioned above, this position is supported by the fact that, in accordance with Article 78(3) of the Act on the Organisation of Work, the provisions of the Labour Code concerning annual leave apply to paid training leave, but only with regard to the calculation of the remuneration due to the pharmacist. The above conclusion is also supported by the wording of Article 1032<\/sup> \u00a7 2 KP. In accordance with this provision, training leave is granted on days that are working days for the employee, according to their current working time schedule. Of course, it must be remembered that the regulation cited undoubtedly concerns training leave granted in connection with an employee taking external examinations, a matriculation examination, a qualification examination in a profession, or a professional examination, or in preparation for a diploma thesis in the final year of study, as well as preparation for and taking a diploma examination. However, as has already been emphasised, the common features of a paid training leave for a pharmacist and a pharmacist's \"general\" training leave justify interpreting Article 78(3) of the Act on Pharmacists in a way that takes this similarity into account. Nor should it be forgotten that the number of educational points required to fulfil the obligation of continuous professional development for a pharmacist, the length of the settlement period in this regard, and the number of points obtained for participating in individual forms of continuous professional development do not depend on the working hours for which the pharmacist is employed (see in detail the Regulation of the Minister of Health of 28 December 2021, already cited). Therefore, the method of calculating the duration of paid training leave for a pharmacist should not hinder them from fulfilling their obligation of continuous professional development. Paid training leave, in the duration described above, is a right of the pharmacist resulting from Article 78(3) of the Act on Pharmacists. It does not need to be explicitly stipulated in the employment contract.<\/p>\n The use of training leave is a right, not an obligation, for a pharmacist. This right exists in relation to their employer. Legal regulations do not provide for the possibility of sending a pharmacist employee on paid training leave without their consent, just as the Labour Code does not grant the employer the authority to order an employee to participate in specific forms of professional development. The requirement to agree on the date of paid training leave with the pharmacist can be understood as leaving the employer with some influence over when the pharmacist will be absent from work.<\/p>\n Consequently, it appears that an employer may indicate to an employee the most convenient time for them, when they expect the pharmacist to fulfil their obligation of continuous professional development. It also seems permissible to object to granting paid training leave during a period when the presence of a particular pharmacist is particularly needed \u2013 for example, due to the absence of other employees due to inability to work (sick leave, commonly known as L4) or due to annual leave taken in accordance with the holiday rota. However, employers must not abuse the aforementioned competence.<\/p>\n Therefore, it should not unduly delay granting an employee pharmacist paid training leave to a degree that significantly hinders the fulfilment of the requirement for continuous professional development. As stated above, it may happen that in a given year a pharmacist does not exercise their right to paid training leave. In such a case, does the unused training leave for the pharmacist carry over to the next year? It seems that the above question can be answered affirmatively. As emphasised above, the paid training leave for a pharmacist is closely linked to the obligation of continuous professional development. This is accounted for over five-year periods. Therefore, a pharmacist can distribute the fulfilment of this obligation unevenly over time.<\/p>\n This should be followed by the right to paid training leave, as referred to in Article 78(3) of the Act on the Fund for Professional Development. Otherwise, the entire Article 78 would be internally inconsistent. The fact that the employer influences the timing of the exercise of this employee right, as emphasised above, also supports the view that unused training leave for a pharmacist is carried over to the following year. The supervisor's needs regarding work organisation should not be associated with the risk of losing the pharmacist's right to paid training leave. If this were the case, it could lead to situations where a pharmacist did not fulfil the obligation of continuous professional development for four consecutive years due to a lack of appropriate agreement with the employer.<\/p>\n In the fifth year, he would therefore have a lot of catching up to do. The \"new\" 6 days of paid training leave due to the pharmacist for that year might prove insufficient. Consequently, the pharmacist would have to either sacrifice their free time or forgo some earnings due to being granted unpaid leave. In both cases, this would lead to an unacceptable burden on the employee \u2013 the pharmacist \u2013 with the risks associated with running a business, which should fall on the employer. Against any doubts about paid training leave for pharmacists carrying over to the next year, it should also be noted, as already observed, that Article 78(3) of the Act on Pharmacists refers to the Labour Code provisions on holiday leave solely regarding the principles of calculating the remuneration due to the employee \u2013 the pharmacist. Therefore, Articles 161, 163, and 168 of the Labour Code, which impose an obligation on the employer to grant the employee leave in the calendar year in which the employee acquired the right to it (and exceptionally by the end of the third quarter of the following year), in accordance with a leave plan unilaterally established by them, should not be applied. As already noted, Article 78(3) of the Act on Pharmacists clearly provides for a completely different solution \u2013 leaving both parties to the employment relationship the freedom to jointly choose the date of utilising the paid<\/p>\n training leave for a pharmacist, not as part of a general leave plan, but in connection with an individual pharmacist's plan regarding the fulfilment of the obligation of continuous professional development. As indicated above, the right to paid training leave for a pharmacist is their employee right. This means that, despite the above, the right described is subject to a statute of limitations after three years from the date on which the claim for granting such leave became enforceable. The problem therefore remains the determination of this date. It seems that the mere notification by the employee-pharmacist of their intention to use paid training leave is not sufficient in this context, as an agreement must be reached with the employer regarding the date of justified absence from work. Therefore, one might venture to state that the statute of limitations for the claim to grant paid training leave to a pharmacist begins to run from the date on which the leave should have commenced, taking into account the employee's stated need for it and the employer's reasonable organisational needs.<\/p>\n The interpretational doubts presented in this post concerning the introduction of a new employee entitlement into Polish law can certainly be a source of legal disputes between pharmacists and their employers. Each party has valid points and interests worthy of consideration. A lawyer specialising in pharmaceutical law, whilst also incorporating employment law into their practice, can assist in many ways. Primarily, it is better to prevent than to cure. Before a pharmacist decides to enter into an official dispute with their employer, it would be advisable for them to consult with a lawyer. Such legal advice can help in assessing the actual legal situation, particularly regarding potential claims. This also applies to the employer. With the assistance of a lawyer, they can more easily consider whether it is worthwhile to incur the costs resulting from employee claims in connection with actions contrary to the potential interpretational direction of the new legal provisions that a court might adopt if a dispute with the pharmacist employee escalates. If an infringement of employment law does occur, both the pharmacist and their employer may need legal assistance to defend their interests. This involves not only support in the courtroom but also case management in the event of an attempt to resolve the matter amicably, for example, through negotiation support.<\/p>\n <\/p>\n Key sources: G\u0142adoch M. Job contract. Amendment to the Labor Code. Templates of contracts and clauses. Comment<\/em>, Warsaw 2024 Labor Code. Comment<\/em>, ed. A. Sobczyk, Warsaw 2023 Labor Code. Comment<\/em>, ed. K. Walczak, Warsaw 2023 Pharmaceutical law. Comment<\/em>, ed. WL Olszewski, Warsaw 2016 Act on the profession of pharmacist. Comment<\/em>, ed., E. Wasilewska, Warszawa 2021 Act on the profession of pharmacist. Comment<\/em>, ed. S. Radowiscki, M. Wierzbowski, Warsaw 2023<\/p>\n\n\n\ud83d\udccbContents<\/b><\/summary>\n
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New authorization for a pharmacist-employee<\/strong><\/h2>\n
Pharmacist entitled to paid training leave<\/strong><\/h2>\n
Paid training leave for a pharmacist and paid training leave provided for in the provisions of the Labor Code<\/strong><\/h2>\n
The amount of paid training leave for a pharmacist<\/strong><\/h2>\n
Unused paid training leave by a pharmacist<\/strong><\/h2>\n
Do I need help from a lawyer?<\/strong><\/h2>\n